S.C. Agrawal, J.
1. This appeal has been filed by the State against the judgment dated 21st March, 1973 passed by the Sessions Judge, Jodhpur whereby the appeal filed by the respondent, Nihal Khan, against the judgment of the Munisf Magistrate, District Jodhpur was allowed and the respondent was acquitted of the offence under Section 411 IPC.
2. The case of the prosecution is that on the night of 28th November, 1970, a theft was committed in the house of Mag Singh (PW.1) at village Beth Wasiyan and various silver ornaments were stolen. A report about this incident was lodged by Mag Singh at Police Station Osian on 30th November, 1970 at 3 P.M. & on the basis of the said report, a case under Sections 454 and 380 IPC was registered and investigation was commenced. In the report aforesaid, the informant Mag Singh stated that the respondent was the person who had committed the theft. The respondeat was arrested on 28th January, 1971 vide Memo of arrest (Ex. P-5) and after his arrest, he gave information vide memo (Ex. P-6) about his having burried the silver ornaments and on the basis of the said information, silver ornaments (Ex. M-1 to Ex. M-6) were recovered vide recovery Memo (Ex. P-1). The said ornaments were identified by Mag Singh (PW. J), his wife Smt. Gita (PW. 7) and Gordhan (P.W.8) the brother of Mst. Gita as belonging to Mst. Gita, at the test identification parade held, on 25th January, 1971. After completing the investigation, the police filed a charge-sheet against the appellant and he was prosecuted before the Munsif Magistrate, Jodhpur District on a charge under Section 411 IPC. The prosecution, in support of its case examined 9 witnesses. The respondent, in his statement recorded under Section 342 Cr. PC., stated that he had been falsely implicated on account of some dispute about money with the khalasi of Ratan Singh. The Munsif Magistrate, by his judgment dated 12th February, 1973, held that from the evidence of Ratan Singh (PW. 5), the attesting witness of the Recovery Memo (Ex. P-4), it was established that the silver ornaments (Ex. M-1 to Ex. M-6) had been recovered at the instance of the appellant from a place some 15-20 steps of the road and that the said ornaments had been correctly identified as belonging to Smt. Gita(PW, 7) by Mag Singh (PW. 1), Smt. Gita (PW. 7) and Gordhan (PW. 8) and since the said ornaments were stolen property and the explanation offered by the respondent was not plausitle and could not be relied upon the respondent was guilty of the offence under Section 411 IPC. The Sessions Judge, on appeal, set aside the conviction of the respondent for the offence under Section 411 IPC and acquitted him of the said offence on the view that there was no evidence on record to show that the respondent was in exclusive possession of the stolen property. In this regard, the learned Sessions Judge has held that according to the statement of the Investigating Officer Ganesha Ram (PW. 9), the property was recovered from a pit in an open space. The learned Sessions Judge further observed that the Investigating Officer, in his statement, had not stated as to what information was disclosed to him by the accused and that the memo Ex. P 6 regarding the information given by the respondent was not substantive piece of evidence and the same could not be made use of According to the learned Sessions Judge in a case where the property is recovered from open space at the instance of the accused, there are three possibilities about such recovery: (i) that the accused has hidden the property at that place; (ii) that he has seen some body else hiding the property there, and (iii) or that he was so informed by somebody, and unless the prosecution negatives the last two possibilities, it cannot be said that the prosecution has proved beyond reasonable doubt that the property was in exclusive possession of the accused. According to the learned Sessions Judge, it was for the prosecution to prove that the accused had kept hidden the property there and this could he proved if the Investigating Officer had stated that the accused informed him that he had hidden the property at such and such place and in the absence of such a statement, there was no evidence to prove that the accused was in exclusive possession of the stolen property and, therefore, the presumption under Section 114 of the Evidence Act could not be drawn. Hence this appeal.
3. We have heard Shri M.C. Bhati, the learned Public Prosecutor for the State in support of the appeal.
4. The learned Public Prosecutor has invited our attention to the statement of Ganesha Ram (PW. 9) and has submitted that in his statement, Ganesha Ram has clearly stated that the contents of the memo (Ex. P-6) are as per the information given by the respondent. The submission of the learned Public Prosecutor was that in view of the aforesaid statement of Ganesha Ram, it must be held that the contents of the memo (Ex. P-6) have been duly proved by him and the learned Sessions Judge was not right in holding that Ganesha Ram in his statement had not deposed about the information that was given by the respondent, which led to the recovery of the stolen articles.
5. In the present case the only ground that has been given by the Sessions Judge for acquitting the respondent was that the investigating officer has not proved that the respondent had informed him that he had hidden the property at the particular place from where it was recovered. Having considered the evidence of the Investigating officer, Ganesha Ram (PW. 9), we are of the opinion that the learned Sessions Judge was not right in taking the aforesaid view. The Investigating Officer Ganesha Ram (PW. 9), in his statement in examination-in-chief, has stated that the memo (Ex. P-6) bears his signatures and the thumb impression of the respondent. He has further stated that the portion marked C to D in the memo (Ex. P-6) was recorded by him in the manner as stated by the respondent. In the portion marked C to D in memo (Ex. P-6), it is recorded that the respondent had given information that he had stolen silver ornaments from the Dhani of Magji Purohit in the day and that all those ornaments had been burried by him near the chokri at a distance of about 400 paondas from the Than of Bhatianji on the road going from Panditji ki Dhani to Chadi and that he could get the same recovered. It can, therefore, be said that Ganesha Ram (PW. 9), in his statement in examination-in-chief has proved the substance of the information that was given by the respondent to him about his having concealed the silver ornaments at a particular place and the learned Sessions Judge was not right in holding that Ganesha Ram had not stated on oath as to what information was disclosed 10 him by the accused respondent.
6. Thus the only ground on the basis of which, the Sessions Judge has set aside the conviction of the respondent and acquitted him of the offence under Section 411 IPC cannot be sustained. The appeal is, therefore, allowed, the judgment of the Sessions Judge is set aside and the respondent is convicted of the offence under Section 411 IPC. The Munsif Magistrate had imposed a sentence of rigorous imprisonment for four months and a fine of Rs. 200/- and in the event of default in payment of fine to undergo imprisonment for a further period of two months. Taking into consideration the facts and circumstances of the case we are of the opinion that the ends of justice would be subserved if the sentence of rigorous imprisonment for four months is imposed on the respondent. We find that the accused-respondent has remained in custody from the date of his arrest on 20th January, 1971 till 3rd March, 1971, when he was ordered to be released on bail, and during the course of trial before the Munsif Magistrate he remained in prison from 27th August, 1971 till 9th October, 1971 and after the conviction, he remained in prison from 12th February, 1973 to 21st March, 1973. It would thus appear that the respondent has undergone imprisonment for a period in excess of the period of four months. Since the respondent has undergone imprisonment for a period in excess of four months, it is not necessary to pass an order for the arrest of the respondent for the purpose of serving out the sentence imposed on him.